2014 PLP 1161 (YLR)

ROOH-UL-AMIN KHAN, J.

Petitioners Muhammad Younas and Rehmatullah, being unsuccessful to get the relief of bail from the two Courts below, by way of instant application, seek the same relief from this Court in case F.I.R. No.90, dated 19-2-2013, registered under sections 365-B/376, P.P.C., registered at Police Station Lakki Marwat District Lakki Marwat.

2. The prosecution case is that on the night of 15-2-2013, Mst. Nazia Hanif daughter of Muhammad Hanif Khan went missing. Her father Muhammad Hanif reported to local police regarding her missing that on that night he along with his wife, four daughters and two minor sons was asleep in his room and at 4.00 a.m. when he woke up, he found his daughter Mst. Nazia Hanif missing, who was searched but with no fruitful result. Complainant alleged her daughter has also taken away 6/7 tolas gold along with her. He charged unknown culprits for abduction/ enticing her daughter for illicit relations. He disclosed that he has no enmity with anybody and on getting the knowledge about the occurrence he will charge the actual culprits. Later on, Mst. Nazia Hanif recorded her statement under section 164, Cr.P.C. wherein she charged the present petitioners for her abduction and committing Zina Biljabr with her.

3. I have heard the arguments of the leaned counsel for the parties and have gone through the record.

4. Much was argued on behalf of either side, but discussion on all those points in detail would certainly be a deeper appreciation of material on record and would amount to expression of opinion regarding merits of the case, which has always been deprecated by the superior Courts, at bail stage, as it may prejudice the case of either side. Suffice it to say that both the petitioners have not been charged directly by the complainant in his report. The mode of occurrence, as narrated by father of the abductee and later on, by the abductee herself in her statement recorded under section 164, Cr.P.C. is indicative of the fact that she herself left the house at her own accord. Neither she, nor the alleged 6/7 Tolas gold, forcibly taken by the accused has been recovered either from the direct or indirect possession of the accused-petitioners. As per arrest Card, both the accused-petitioners have been arrested on 9-2-2012, while Mst. Nazia Hanif, the alleged abductee, has been examined under section 164, Cr.P.C., on 20-2-2013, a day later of the arrest of accused-petitioners. Keeping in view the allegations of the abductee regarding commission of Zina biljabr with her by the two petitioners in the motorcar in juxtaposition with her medical report and the negative FSL report qua her vaginal swab, the case requires further probe into the guilt of accused-petitioners and circumstances, the begging question to be answered by the prosecution would be as to whether it is a case of simple attempt of committing Zina Biljabr or whether the facts and circumstances suggest the kidnapping or inducing of Mst. Nazia Hanif by the petitioner with intent to compel her to marriage against her will or to force or seduce her to illicit intercourse. Section 365-B, P.P.C. signifies the carrying away of a woman by any means with an aim that she may be compelled to marriage or forced or made to illicit intercourse, against her will. The plain reading of the section indicates two main components and ingredients of the offence, firstly, there must be kidnapping or abduction of a woman, and secondly, the first act of abduction and kidnapping, must be with intent that she may be compelled to marriage or be forced or seduced to illicit intercourse. In the instant case all the above said, elements are missing.

5. It is true that inducing of a woman/ girl for taking improper advantage of her inexperienced, callowness and youth is a serious and flagitious crime in society but it is also settled law that the mere fact that accused-petitioners are charged for heinous offence falling within the restrictive Clause of section 497, Cr.P.C. would not hamper in the way of bail, if otherwise, they have made out a case of bail, on merits. A person who is entitled to grant of bail should not be kept in the jail. Even a single day of detention of an innocent accused could not be compensated, after his acquittal at the conclusion of the case. One must remember that freedom of an individual is a precious right. Personal liberty of an individual should not be snatched away from him unless; it becomes necessary to deprive him of his liberty under the law. It follows that no one can be refused to be enlarged on bail as a punishment, if he is otherwise, entitled to be so enlarged. The law of bail has to dovetail two conflicting demands, namely, requirements of society for being shielded from hazards of being exposed to misadventure of a person alleged to have committed a crime, on the one hand, and fundamental canon of criminal jurisprudence, namely, the presumption of innocence of an accused, till he is found guilty, on the other.

6. For what has been discussed above, on tentative assessment of the material on record, the case of the petitioners is arguable for the purpose of bail. Resultantly instant application is allowed and both the accused-petitioner are admitted to bail provided each one of them, furnishes bail bonds in the sum of Rs.2,00,000 (two lacs) with two sureties/each in the like amount to the satisfaction of Illaqa/Judicial Magistrate concerned. AG/319/P Bail granted.